Suhua Qiu v. Jefferson Sessions , 693 F. App'x 490 ( 2017 )

FILED
UNITED STATES COURT OF APPEALS
JUL 14 2017
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SUHUA QIU, Nos. 13-74294
14-71932
Petitioner,
Agency No. A077-668-221
v.
JEFFERSON B. SESSIONS III, Attorney ORDER
General,
Respondent.
Before: WALLACE, McKEOWN, and BYBEE, Circuit Judges.
The petition for panel rehearing is GRANTED in part. We WITHDRAW our
previous memorandum disposition (Dkt. 47 in No. 13-74294, 40 in No. 14-71932)
and replace it with the one filed concurrently with this order. The petition for
rehearing is DENIED in all other respects.
IT IS SO ORDERED.
FILED
NOT FOR PUBLICATION
JUL 14 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUHUA QIU, No. 13-74294
Petitioner, Agency No. A077-668-221
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
SUHUA QIU, No. 14-71932
Petitioner, Agency No. A077-668-221
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted March 14, 2017**
San Francisco, California
Before: WALLACE, McKEOWN, and BYBEE, Circuit Judges.
Petitioner Suhua Qiu petitions for review of two orders of the Board of
Immigration Appeals (Board). The first order dismissed his appeal from an
immigration judge’s (IJ) order holding his asylum application to be frivolous, and
the second denied his motion to reopen proceedings. We have jurisdiction pursuant
to 8 U.S.C. § 1252, and we grant the petition for review only with respect to the
Board’s denial of the motion to reopen.
We “review the denial of a motion to reopen for abuse of discretion.” Meza-
Vallejos v. Holder, 669 F.3d 920, 923 (9th Cir. 2012). The Board “abuses its
discretion when its decision is ‘arbitrary, irrational, or contrary to law.’” Id.,quoting Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000).
The Board denied Qiu’s motion to reopen, which was based on his
attorneys’ allegedly ineffective assistance, because Qiu had not submitted any
evidence “beyond what was previously before either the Immigration Judge or the
Board that would reflect that former counsels’ performance was deficient.” In
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
essence, the Board concluded that Qiu should have raised his ineffective assistance
argument during his appeal. This conclusion suffers from two defects. First, it fails
to distinguish between the allegedly ineffective performances of Qiu’s two
lawyers. Although Qiu conceivably could have challenged the first lawyer’s
performance on appeal, he necessarily could not have challenged the second
lawyer’s performance during the appeal until the appeal concluded. It was an
abuse of discretion to hold otherwise.
Second, Qiu asserted in his motion that his second lawyer’s failure to argue
that his first lawyer performed ineffectively was ineffective assistance in its own
right. The Board’s conclusion that Qiu should have made the argument earlier
therefore “short-circuits the central questions: whether [Qiu’s] counsel was
unconstitutionally ineffective in failing to present the [argument] and, if so,
whether [Qiu] w[as] prejudiced by [his] counsel’s performance.” Maravilla
Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004). If allowed to stand, the
Board’s decision would permit the lawyer’s allegedly ineffective performance to
bar a challenge to that very performance. Instead, the Board should have
determined whether Qiu had shown that (1) his “counsel [failed to] perform with
sufficient competence,” and (2) he was prejudiced by that performance. Id.,quoting Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004).
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On remand, the Board should conduct the analysis described in Maravilla
Maravilla, which Qiu did not call to our attention until his petition for rehearing.
We emphasize that the Board abused its discretion only by failing to follow this
analysis; we express no view as to the merits of Qiu’s motion to reopen. In light of
our holding that the Board must reassess Qiu’s motion to reopen his administrative
proceedings, we do not reach the merits of the Board’s other order.
PETITION GRANTED.
4